Complainant

Respondent

Parties

Deepa  Philip

St James Hospital

Complainant

Respondent

Anonymised Parties

Representatives

Mairead Carey , Carey Solicitors

Peter Flood , Ibec.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00032133-001

12/11/2019

The Complainant is a senior staff nurse employed directly by the Respondent hospital since April 2011. She had been employed by an agency in the same hospital since February 2006.

This complainant submitted under s.8 of the Unfair Dismissals Act, 1977 was received by the Workplace Relations Commission on 12th November 2019.

The hearing of the complaint took pace over 5 days commencing in January 2020 and ending on 21st October 2021.

The Claim.

The claimant was constructively dismissed on the 19th May 2019 after more than 13 years

working as a nurse at St James Hospital.

Background:

Following an incident on New Year’s Eve 2018, where the Complainant could not cover for a

work colleague because of an emergency at home, the Complainant was isolated at work and

began to suffer bullying and harassment. She was picked on by her colleague and thereafter

her line manager and was frequently belittled and humiliated. Any error made or perceived

error was seized upon.

She was obliged to undergo an assessment process designed for new nurses even though she

was fourteen years in the job and had been a preceptor and team leader during that time. Her

colleagues were informed of the assessment process, her competency questioned and she felt

completely undermined at work.

As a result, she suffered extreme work-related stress which shattered her confidence and

affected her ability to do her job as a senior staff nurse. In June 2018 her line manager Ms JG informed her that she would get statements from her colleagues stating that she was incompetent and get her sacked.

Over May and June, the Applicant lost 10kg in weight and had difficulties sleeping and

eating. She was certified unfit to work from June 25th, 2018 until the following September.

The Complainant invoked grievance procedures on 11th July 2018 but her complaint about the

manner in which she was treated was ignored. The respondent simply did not engage with the

grievance procedures and only responded to her union about the complaint after she had left St

James on 20th May 2019.

On the 20th September 2018 she had a meeting with management and her union where

management stated that they were anxious to support her return to work and where they stated

they would support the Complainant in rebuilding her confidence.

However, far from assisting the Complainant on her return on the 24th September, further pressure

was applied. The Complainant was returned to the same ward, with the same personnel difficulties

as before. She was once again subject to continuous assessment. Among those carrying out the "assessment" was her line manager against whom she had raised the aforesaid grievance. Her shift pattern was changed from 3 long days per week to 8-4, even though this caused huge child-minding difficulties for her at home. The Complainant has three children under the age of 11, one of whom has special needs.

On the 25th September, she raised a query with the person assessing her, about a controlled

drug which a patient had not been given by another nurse the night before. The matter was

reported to her line manager who called her colleagues to a meeting. She was excluded.

A colleague later informed her that they had been warned by their manager to be careful as the Complainant was watching and reporting back to management. The Complainant was further isolated from her colleagues and became subject to even more scrutiny.

On the 28th November when she went to work, a notice had been pinned up in the nurses

station stating “Life is an echo. What you send out, comes back. What you sow, you

reap. What you give, you get. What you see in others, exists in you.” Her colleagues admitted

it was aimed at her. One of them suggested she would “suffer” a lot. She took the notice

down and complained to management.

The following day, there were five posters about “Karma” pinned up in the nurses’ station,

until one of the senior nurses took them down and handed them to the CNM2, Mr RD.

Still there was no response from management to her bullying complaint.

On November 20th one of her children was admitted to hospital and she sought force majeure

leave but was refused.

On 7th December she was informed by management that they had significant concerns about

the Complainant’s performance and that she was being placed on administrative leave for

investigation under the Disciplinary Policy. Following discussions with the INMO, it was

“agreed” that the Complainant would have the option of resigning and would be given a reference by St James Hospital. The only alternative, she was informed, was that she would be subject to disciplinary proceedings and face dismissal. It was never explained what misconduct could have led to disciplinary proceedings.

On the 8th January she was informed that she was being suspended while serious concerns in

relation to her employment were being addressed. She was informed that she was not to come

into the hospital premises and must not contact or discuss the matter with other staff and failure to comply with this may result in disciplinary action. Her suspension resulted in her income dropping from an average of €2335 per fortnight to €1907.

The Complainant was put under intense pressure by management and her union to make her mind up about her so-called voluntary resignation. On the 21st January, she was required by Mr B O’S to give a final decision by close of business on the 23rd January. On the 22nd he wrote to the INMO stating that he had spoken to the Complainant yesterday evening as requested and made it clear to her what the options were available to her.

On the 23rd January her union advised her by letter “whilst I appreciate this situation is deeply

upsetting for you, I urge you to make a decision otherwise it is my view that Management will proceed with a disciplinary investigation.”

When the Complainant informed Mr. BO’S she thought she had until Friday, he extended the

deadline to Thursday at 11 am but warned there would be no more extensions. At 11.25 am

on the morning of the 24th January Mr. BO’S wrote to her again as follows: “following our

further phone call. You have agreed to let me know your decision by 12 noon today.”

The Complainant eventually relented. In an email to BO’S she stated that she did not want to resign but didn’t have any other option. She asked if he could give her a good reference. He replied 15 minutes later accepting her resignation and confirming a reference would be provided.

The Complainant sought a further meeting with management to discuss her situation and provided them with a letter from her GP who confirmed that she was not medically fit to make a rational decision in relation to her employment given the stress she was under.

The Respondent accepted this and “cancelled” her "resignation" but informed her at the same

meeting that it had no alternative but to commence an investigation under the Hospital’s

Disciplinary Policy and advised that this could result in disciplinary action up to and including dismissal and a report sent to the NMBI.

The pressure on the Complainant continued. She was contacted on the 25th February to attend an appointment with the Occupational Health Department on the same day, and emails were sent to her union seeking an explanation for her absence when she couldn’t turn up at such short notice.

When she was deemed fit by her GP to return to work, she was not allowed return to the hospital and again pressure was applied to force her to “resign”. She was given an ultimatum to either resign and get a reference or face disciplinary action and dismissal.

She repeatedly sought an opportunity to return to work to show that she could deal with any

issues management had, but her requests were refused. She was increasingly distressed but

the pressure to make up her mind continued.

By email dated 19th April to Mr. BO’S the Complainant stated that she did not want to go through a disciplinary action. She stated that she would resign but before that she wanted to talk to her union representative. The Complainant stated that she had rang her union rep but could not get her.

The Complainant also asked MR. BO’S for his advice on a few matters. He replied to the Complainant at 12.25 on April 23rd as follows: “In response to your resignation below. I can confirm that we accept your resignation.”

Mr. BO’S had sent the Applicant’s email of the 19th to her union representative at

8.55 that morning stating:

“Hi,

See Below. I think this is clear cut.

Maybe if you are meeting her you could ask her to fill out the resignation form

(attached) – it’s not totally necessary but might provide a bit more assurance for all. I will

confirm acceptance of resignation asap. You might let me know if you can get the

attached form filled out?

Regards & Thanks”

The Applicant continued to contact her union and the Irish Congress of Trade Unions

complaining that she was being forced to terminate her employment. She sought a meeting

with Mr. BO’S but was informed by her union by letter dated 24th April that he was not prepared to meet with her “until a decision is made”.

She eventually relented and terminated her employment. Her final day employed was the 19th May 2019.

The Complainant subsequently attended an interview for a job as a nurse at another hospital and was successful at interview but the decision was overturned after they sought a reference from her last employer.

The Complainant is currently working in a nursing home. There are no pension benefits or sick

pay. Her career in nursing has been destroyed.

It is submitted that the Complainant was constructively dismissed.

She was given an ultimatum to “resign” and get a reference or face disciplinary action and

dismissal. This was a fundamental breach of the mutual trust and confidence requirement of

her contract of employment and amounts to a repudiatory breach of the employment contract.

The Complainant had no alternative but to terminate her employment, as it was made clear to her repeatedly that she would not be allowed to return to work in the hospital. In those

circumstances it was also reasonable for her to resign given the behaviour of the respondent.

The Applicant made a Data Access Request which was complied with on

the 24th October 2019. There is not a single complaint regarding her competence or

performance on the Applicant's file prior to the raising of her grievance in July 2018. Nor was

there any written warning to her or memorandum of any verbal warning given to her during

her 13 years as a nurse at the hospital.

Background.

The Complainant was employed as a Senior Staff Nurse. She commenced employment with the Hospital in a permanent capacity in April 2011.

Since 2014 she has been based in a rehabilitation ward within the Medicine for Older People Directorate. The section has 20 single rooms and 3 x 3·bedded areas. The patient cohort within the ward require a lot of direct care with patients to restore them to their baseline functioning prior to their medical issues or indeed get them to adapt to their new baseline functioning status.

The management team in this areacompromised of CNM 2 (RD) and CNM 1 (JG) who had been in this role since the Complainant commenced employment.

On April 23, 2018 an incident occurred involving a vulnerable elderly patient with dementia. The Complainant, when transferring the patient from a chair to the bed, caused her severe pain. The patient's daughter and granddaughter, who happened to work as aHealthcare Assistant, were present in the room when this happened. The Complainant's CNM 2, RD, met with the patient's daughter on April 24 to discuss the incident. However, the Complainant then approached the patient's daughter and asked her not to report the Complainant to management. This resulted in a written complaint being made to the Hospital. The written complaint also made reference to the manner in which the Complainant engaged with the family member.

On May 3 the Assistant Director of Nursing, Ms JD and RD met with her to discuss the complaint. At this meeting she accepted that she had not lifted the patient correctly. It was agreed with the Complainant that she needed support with manual handling and communication in order to improve her performance. It was agreed that she would attend a manual handling course and course on communication skills. During this meeting she spoke over management rather than listening. She was informed that CNM 1 (JG) would work with her in relation to proper manual handling and her communication/listening skills.

This resulted in CNM 1 (JG) working side by side with the Complainant. Prior to this arrangement the Complainant worked with other colleagues under the supervision of the line managers.

On June 18 the Complainant met with Mr Donnelly and Ms Garcia to discuss other areas for improvement including:

•         How to order an electric mattress on the system

•         How to complete the Patient Discharge Form on the system

•         How to complete a Care Plan for a patient.

Because previously the Complainant worked with other staff with the same patients rather than a CNM 1 it became apparent that she was not competent in the above areas and this had not come to the attention of management up until this point. Given her role as a Senior Staff Nurse it was assumed that she was competent in these areas.

On June 20 a meeting took place to discuss her progress. This was also attended by Ms JD, Mr RD and Ms JG

Two days later the Complainant went absent from work stating the cause of absence as workplace stress.

On June 29 the Complainant was referred to the Hospital's Occupational Health Physician for review.

On July 11 the INMO sent a letter to Ms JD. In this letter it is alleged that other staff were aware that the Complainant was on an action plan, that Ms JG had stated to her that she would not pass the action plan and that the Complainant's action plan had been given to another Senior Staff Nurse.

Management did meet with Ms JG to discuss the contents of the INMO letter. She refuted these allegations.

Management did not respond to the INMO letter as the Complainant was out of work alleging workplace stress.

On July 24 the Complainant met with the Occupational Health Physician. The conclusion was that she was suffering from severe stress and would be absent for a number of weeks.

The Complainant was in fact absent for 3 months.

On September 5th she was againreviewed by Occupational Health and deemed fit to return to work.

Return to Work.

On September 20 the Interim Assistant Director of Nursing, Ms KF (she was covering the maternity leave of Ms JD), Assistant Director of Nursing in HR, Ms ON, her INMO representative, Ms MRC and the Complainant met to discuss her return to work. The Complainant stated that she wished to return to work. Given her performance issues and alleged issues with Ms JG it was agreed that she would report to Ms SF, Clinical Facilitator, rather than Ms JG.

Her role would become a supernumerary post and she would work with Ms SF.

It was unusual to create a supernumerary role for a Senior Staff Nurse. This was done to support the Complainant. She also worked the same hours as Ms SF and the number of patients she was engaging with was 2/3 rather than the 6/7 that would be the norm for a Senior Staff Nurse. Management also committed to having discussions with Ms JG and would support the rebuilding of trust in their working relationship. After this discussion with Ms JG a further meeting would take place to discuss the best way forward.

On September21the Complainant’s INMO official sent a letter to Ms ON setting out what had been agreed at this meeting.

On September 24 her performance management with Ms SF commenced.

On October 19 the Complainant, Ms ON and Ms KF met to discuss the Complainant’s working relationship with Ms JG. The Complainant stated that she had no issues with Ms JG.

Performance Management.

This involved the completionof daily reports on the Complainant’s daily work. These were written up and  theComplainantsignedtheseoffifsatisfiedthatthecontentrepresentedtheworkdoneduringthatday.

On September 25 Ms KF, Ms ON and Ms JG met to discuss the allegations against Ms JG. She refuted that she had given the Complainant's action plan to another Staff Nurse or that she had spoken to the Complainant in an inappropriate manner. Ms JG stated that she had regular engagement with the Complainant in the course of work and at no point did the Complainant raise any issue with her in relation to these matters.

On November 1 Ms KF met with the Complainant to discuss her progress. She was told that where  she had any issues then she should speak with Mr RD. She did ask when her competency in medication would be signed off and was told that Mr RD and Ms SF would be the people doing this. The Complainant stated that she was happy for the performance management process to continue.

Later that day the Complainant met with Mr RD. At this meeting they discussed her engagement with other staff. Her complaints were very vague in nature. Mr RD informed her that if she had any issue with communication or practice issues of work colleagues then these should be reported to him without delay to enable him to follow up. At this meeting the Complainant also raised the issue of when she would be deemed to have competency to administer medicines and that she wanted to do professional development. Mr RD informed her that the competency involved following the Hospital policy. In relation to personal development Mr RD informed her that this was Ms SF’s area of responsibility and that the Complainant should discuss this with her. To ensure all staff were aware of the need to communicate in an appropriate manner in the workplace Mr RD printed the Hospital Dignity at Work Policy and circulated to staff. He also raised awareness of the policy at handover meetings.

On November 14 and 15 Ms SF met with the Complainant and informed her that her medication competency had been signed off and there had been an improvement in different aspects of her performance. She was told that this improvement was expected to continue and if not then it could become a disciplinary matter. The Complainant stated that she understood this. It was also said to her that going forward the supervision of her would decrease and she would be responsible for her patients. Mr RD and Ms SF would  still be there to support her and the completion of the daily report would continue and that she would continue to be monitored as part of the performance improvement plan. When asked if there were any other issues she alleged that another staff had spoken to her inappropriately when she sought assistance. She had raised this with Mr RD and that he was following up on this. However, in her discussion with Mr RD on November 1 she also stated that   she would be agreeable to a meeting with this staff member in the presence of Mr RD to discuss the matter. She also alleged that some staff were not communicating with her in the appropriate manner. Ms SF offered to meet with staff to discuss the Hospital Dignity at Work Policy. This was agreed to by the Complainant and was done a few days later.

A letter issued to the Complainant inviting her to a meeting to take place on November 23. The Director of Nursing, Ms Sharon Slattery, Ms Fitzgerald and Ms Feeney would attend the meeting. At this meeting Management concerns on the Complainant's medication competency, Nurse Care planning, communication, documentation and time management would be discussed. (Copy of letter in appendix 10)

The meeting of November 23 was attended by the Complainant, her INMO official, Ms Feeney, Ms Fitzgerald and Ms Nugent. At this meeting it was agreed to extend by 2 weeks the plan to get the Complainant up to full competence. At this stage the Complainant had been in a supernumerary role since returning to work in September. At this meeting, the Complainant through her INMO official, acknowledged the support provided by the management to assist her in achieving the required standards of work.

On November 28 a meeting, at the request of the Complainant, took place attended by Ms KF, Ms CO’C, Education and Training Coordinator and the Complainant. This meeting took place due to discuss two performance issues highlighted by the Complainant that she had had a medication error and dressing of wound.

In relation to the medication error she did not observe the patient taking the medication although it was gone from a table. As a result, she had to redo her competency. It took some time for the Complainant to accept that if she had observed the patient taking the medicine then she would not have to redo her competency. The Complainant appeared to be more focused/anxious with the staff member who removed medications and discarded them as per policy when staff find unattended medications on patients' lockers versus her responsibility in leaving medication on the locker which is against Hospital policy.

In relation to dressing a patient's wound the Complainant did not complete the dressing of a wound that was due for changing. She stated that she found the dressing to be intact and so made the clinical judgement not to do so. She was informed that it was impossible to make such a clinical judgment if the dressing had not been taken down in line with the care plan. It was explained to her that if she believed that the frequency needed to be changed then this should have been assessed by her and the care plan reviewed as appropriate.

Suspension of Complainant

OnDecember7ameetingtookplaceattendedbytheComplainant,herINMOofficial,Ms ON and the Hospital Employee Relations Manager, Mr B O’S.At this meeting she was informed that she was being suspended on full pay pending investigation of serious concerns inrelation to her working practices and knowledge. She had previously been informed of these issues ina letter prior to themeetingofNovember23.

On December 13 the Complainant asked to meet with the Director of Nursing, Ms S S.  The Complainant attended with her INMO official. At this meeting the Complainant spoke about her complaint in  relation to Ms JG. Both the INMO official and the Director of Nursing explained that this had been discussed at the meeting in September and was closed out at that time. The INMO official stated that no correspondence had been received stating this and the ADON HR, Ms ON, was to follow up on this with a letter. A letter issued on December 17 stating that there was no commitment given to carry out an investigation into her relationship with Ms JG. The purpose of the meeting was to assist the Complainant’s return to work. The letter also refers to the meeting of October 19 at which the Complainant stated that there were no issues regarding her relationship with Ms JG and that management was not required to intervene at that time. At the end of the meeting the INMO official raised the matter of  provision of a reference if the Complainant was to resign. The meeting was suspended at that point and she remained on administrative leave.

On December 17 the letter as promised at the meeting of December 13 issued tothe INMO.

OnJanuary8,2019Mr BO’S issueda letter to the Complainant confirming her suspension from work.

On January 24 the Complainant sent an email to the Employee Relations Manager, stating that she did not wish to resign but felt that she had no option. She requested that a good reference be issued to her. On the same day Mr BO’S sent an email accepting her resignation

On February 15 a meeting took place attended by the Complainant, her INMO official and Mr B O’S. This meeting was requested by the Complainant. At this meeting the Complainant submitted a medical certificate from her own Doctor stating that she was suffering from stress and was not fit to make a rational decision in relation to her future. At this meeting she sought to withdraw her resignation. The Hospital agreed to this and the Complainant remained on administrative leave. However, she was informed that following an assessment by the Hospital's Occupational Health Physician that an investigation into her performance and her fitness to practice as a  nurse would be investigated. She was informed that the outcome of this could be a disciplinary sanction up to and including dismissal.

On March 13 Mr B O'S issued a letter to the Complainant setting out what was discussed at the meeting  onFebruary15.

OnApril2Mr BO’SsentalettertotheComplainant'sINMOofficial.Inthisletterheoutlinesthattherewere serious concerns in relation to the Complainant's performance and competency as a Nurse.The Hospital had put in place supports to address the shortcomings. The allegation that Ms JG everdisclosedconcernsontheComplainant'sperformancetootherstafforaskedotherstafftoreportanyissuesontheWardregardingtheComplainantwasrejected.

OnApril5theINMOOfficialsentalettertotheDirectorofNursing,Ms S S seeking a meeting to discuss the Complainant's options in relation tothe disciplinary investigation and her desire to return to work in the Hospital.

On April 17 the Complainant, her INMO official, the Director of Nursing and Mr BO’S met. At this meeting they discussed the Complainant's original grievance against Ms JG and was informed that what she was referring to was normal reporting processes that take place in a Ward.

On April 19 the Complainant again tendered her resignation. In this email the Complainant states that she did not wish to enter the investigation process. Her resignation was accepted by the Hospital on April 23.

ShecompletedtheHospitalResignationFormonApril30.

Thereference,withthewordingasagreedwithherINMOofficial,wasissuedbytheDirectorofNursingonMay2,2019.

Her employment ceased with the Hospital on May 19.

On May 28 the Director of Nursing sent a letter to the Complainant's INMO official repeating what had been said in Mr BO’S’s letter of April 2 in relation to her grievance concerning Ms JG. An internal review had concluded that no staff member had been spoken to inappropriately by Ms JG, no staff had any recollection of any inappropriate conversations between staff members and CNM's in relation to the Complainant. The Issue that the Complainant was referring to was normal reporting processes that go on in a Ward. Following on from her complaints against Ms JG local management was at all times endeavouring to work with the Complainant to bring her performance up to the required standards.

The Law

Section 1 of the Act defines constructive dismissal as

"the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstancesin which, because of the conduct ofthe employer,the employeewas or wouldhave been entitled, or it was or would have been reasonable for the employee, to terminate the contractofemploymentwithoutgivingpriornoticeoftheterminationtotheemployer.

Case law has established that there exists a burden on the claimant to demonstrate that

•         The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

•         The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment.

The burden of proof is on the Claimant to establish the above. This is high burden to substantiate.

In the case McCormack v Dunnes Stores UD1421/2008 the Employment Appeals Tribunal stated:

'The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhaustedall internalproceduresformal or otherwise in an attempt to resolve her grievance with his/her employer. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable."

Furthermore, the Complainant would normally be expected to put the employer on notice prior to resignation that if his/her complaints are not addressed then he/she will have no option but to resign. All internal remedies must be used by the Complainant.

Complainant's Allegation

The Complainant is alleging that she had no option but to resign given the behaviour of Hospital management toward her. Her grievances were ignored, and her paid suspension did irreparable damage to her reputation.

These allegations are rejected by the Hospital.

Hospital Case

•         The Complainant’s allegation that she was forced to resign is rejected. She was permitted to withdraw her initial resignation. She had the support of her INMO prior to making a final decision whether or not to resign from the employment. If her suspension was a reason for resignation then why did she seek to be reinstated having initially resigned? She had been suspended from December 7. She then resigned on January 24. However, she withdrew this resignation in mid-February.

•         Her grievances against Ms JG were not ignored. The Hospital could find no evidence that the Complainant was ever subjected to bullying or harassment by Ms JG. Ms JG's engagement with the Complainant up to June 2018 amounted to normal reporting processes concerning incidences in a Ward. At a meeting on October 19 the Complainant stated that she had no issues with Ms JG. This suggests that if she had any issues with Ms JG that these had now been resolved.

•         On her return to work in September her day to day management was under the supervision of Ms F. She was not under the supervision of Ms JG since returning to work in September which was some 8 months prior to her resignation.

•         The Complainant never made any specific allegation of inappropriate behaviour against any   member of management other than Ms JG.

•          In relation to work colleagues it was never established that there were any inappropriate conversations between them and the CNM's in relation to the Complainant.

•         At a meeting on November 1 with Mr RD she enquired about personal development opportunities. This does not suggest that at that point there was any consideration of resignation.

•          Allegations of November 28 against work colleagues were not raised by her or her INMO official with management. The Complainant and her INMO official attended meetings with Management on December 7 and December 13 and yet these allegations were never raised by her. The meeting of December 13 was sought by the Complainant

•         The Complainant never put the employer on notice that she would resign because of her suspension or the manner in which Hospital management dealt with her complaints against Ms JG. She had access to her INMO official at all times. It is incorrect to state that she was "given an ultimatum resign and get a reference from St James's Hospital or face disciplinary action and

dismissal". This is not stated in any correspondence from Hospital management, her INMO official or the Complainant herself.

•          The subject of resignation was introduced by the Complainant’s INMO official at the meeting of December 13 and not Hospital management. As stated above this meeting was sought by the Complainant.

•       Management sought to work with the Complainant to address her work performance issues. In fact, her INMO official acknowledged the support provided by management at a meeting on November 23.

•       It is rejected that the Complainant had no option but to resign given the behaviour of the Hospital management. The Hospital supported the Complainant on her return to work in September 2018 following a 3-months' period of absence. It removed Ms Garcia from day to day management of her and allocated another manager to her to giveher support to improve her performance and management also reduced her patient workload.

•       In the Complainant’s final resignation email is clear that the reason for the resignation is that she did not wish to engage in an investigation process on her work performance. There is no reference in this email that her suspension from work or relationship with any work colleague being a factor in her decision to resign.

•       The Complainant was represented at all times by her INMO official. She could have appealed the  decision to suspend her from work through the Hospital grievance procedure.

•       The Complainant could have remained in the employment whilst an investigation of her performance and nursing practice was undertaken. If she believed, as is suggested, that she could deal with the concern’s management had with her performance then clearly it was open to  her to argue this in any investigation. Also, she could appeal any findings in line with the Hospital grievance procedure.

•       The Complainant alleges that she was successful at interview for a role with Cappagh Hospital, but that decision was overturned based on a reference received from St James's Hospital. However, the reference provided to Cappagh Hospital was that agreed between the Complainant’s INMO official and Director of Nursing.

Conclusion

The Complainant was supported at all times by management in dealing with her workplace she also had the assistance of a full time INMO official at any time.  Her union official attended at many of the meetings with management.

The Hospital management went to extraordinary lengths to assist the Complainant with her performance issues.

She was permitted to withdraw her original resignation.

There is no evidence that her suspension or her issues with Ms JG and other staff was the reason for her ultimate resignation.

The Complainant was never told that if she did not resign that her employment would be terminated.

The Complainant did not seek to challenge the position taken by management whilst in the employment.

The Complainant has therefore failed to establish the burden of proof required to substantiate a complaint of constructive dismissal under the Unfair Dismissals Act.

Comprehensive submissions were made on behalf of both parties during the hearing of the complaint. I have summarised these submissions in some detail above.

Section 1 of the Unfair Dismissals Act, 1977 defines Constructive Dismissal as follows:

"the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstancesin which, because of the conduct ofthe employer,the employeewas or wouldhave been entitled, or it was or would have been reasonable for the employee, to terminate the contractofemploymentwithoutgivingpriornoticeoftheterminationtotheemployer”.

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is the ‘contract’ test where the employee argues ‘entitlement’ to terminate the contract. Secondly, the employee may allege that he or she satisfies the Act’s reasonableness test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment but its conduct may be nonetheless unreasonable.

In relation to the two tests Redmond on Dismissal Law (third edition) at clause [19.07, p433 states:

‘Under Irish Law, either test may be applied by the Workplace Relations Commission, although it may be a matter of inference which test is followed in the circumstances.  Whereas sometimes the Adjudication Officer will expressly delineate between his or her treatment of the tests in general, the two tests are frequently regarded as interchangeable.  In a 2017 decision of the Workplace Relations Commission, for example, the Adjudication Officer stated of claims of constructive dismissal (ADJ – 00002814)

“In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered.  Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment. …. In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour”.

The contract test is more stringent than the test of reasonableness.  Yet they have been provided in the form of alternatives.  Whichever test is applied, as was observed by the Employment Appeals Tribunal in one of its last constructive unfair dismissal determinations ‘[t]he bar for constructive dismissal is very high’. (UD 1126/2014).

In another case, Looney and Co Ltd v Looney (UD 843/1984) the EAT summarised as follows:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged”.

Whilst this was not a case of Constructive Dismissal it provides a description of what my task as the Adjudication Officer in the instant case. That is to look at the procedures followed, decide if they were fair and to look at the reasonableness of the outcome.

The Complainant contends that following her inability to cover for a colleague on New Year’s Eve her colleagues isolated her at work and she began to suffer from bullying and harassment at the hands of her colleagues and eventually her line manager, any error made was seized upon. There appears to be no indication in either submission that this was reported to management by the Complainant.

The next incident on 23rd April 2018 involving a vulnerable elderly patient with dementia. The Complainant, when transferring the patient from a chair to the bed, caused her severe pain. The patient's daughter and granddaughter, who happened to work as aHealthcare Assistant, were present in the room when this happened. The Complainant's CNM 2, RD, met with the patient's daughter on April 24 to discuss the incident. However, the Complainant then approached the patient's daughter and asked her not to report the Complainant to management. This resulted in a written complaint being made to the Hospital. The written complaint also referred to the manner in which  the Complainant engaged with the family member and had raised her voice to family members. The letter ends with the writer contending that the Complainant’s manner was both unacceptable and unprofessional.

A meeting was arranged for 3rd May 2018 to discuss the complaint. Present at this meeting were the Complainant, her line supervisor, Mr. RD and Ms JD, the Assistant Director of Nursing. At this meeting the Complainant accepted that she had not lifted the patient correctly. It was agreed with the Complainant that she needed support with manual handling and communication in order to improve her performance. It was agreed that she would attend a manual handling course and a course on communication skills. During this meeting she spoke over management rather than listening. She was informed that CNM 1 (JG) would work with her in relation to proper manual handling and her communication/listening skills. This resulted in Ms JG working directly with the Complainant. Prior to this arrangement she was working with other colleagues under the supervision of line managers.

The Complainant’s rep has stated that the Complainant was obliged to undergo an assessment process designed for new nurses even though she was fourteen years in the job and had been a preceptor and team leader during that time. Her colleagues were informed of the assessment process, her competency questioned and she felt completely undermined at work.

As a result, she suffered extreme work-related stress which shattered her confidence and

affected her ability to do her job as a senior staff nurse. In June 2018 her line manager Ms JG informed her that she would get statements from her colleagues stating that she was incompetent and get her sacked.

Over May and June, the Applicant lost 10kg in weight and had difficulties sleeping and

eating. She was certified unfit to work from June 25th, 2018 until the following September.

This version of events is somewhat different to the Respondent’s version:

On June 18 the Complainant met with Mr RD and Ms JG to discuss other areas for improvement including:

•         How to order an electric mattress on the system

•         How to complete the Patient Discharge Form on the system

•         How to complete a Care Plan for a patient.

Because previously the Complainant worked with other staff with the same patients rather than a CNM 1 it became apparent that she was not competent in the above areas and this had not come to the attention of management up until this point. Given her role as a Senior Staff Nurse it was assumed that she was competent in these areas.

On June 20 a meeting took place to discuss her progress. This was also attended by Ms JD, Mr RD and Ms JG

Two days later the Complainant went absent from work stating the cause of absence as workplace stress.

On 24th July 2018 the Complainant attended the Occupational Health Physician. This visit concluded in a report being issued that the Complainant was suffering from severe stress and would be absent for a number of weeks. Points of note contained in this report are that the Complainant would be unfit for work for at least another 6 or 7 weeks. The Occupational Health Physician referred the Complainant to the Employee Assistance Programme.

The Complainant was absent from work from 25th June to 24th September 2018.

On 11th July 2018 the Complainant’s union representative wrote to Ms JD, Assistant Director of Nursing raising a formal grievance in relation to the manner  in which the Complainant was being managed at ward level and her confidentiality and privacy were being breached by Management  - one such allegation was that the CNM1 Ms JG was informing other staff that the Complainant had been placed on a performance improvement programme and that it was unlikely that she would pass this programme. The letter stated that Ms JG had not only breached the Complainant’s rights to privacy and confidentiality, but her actions have compromised the Complainant’s standing among her work colleagues.

Page 2 of this letter states that the Complainant has not been afforded a fair impartial process in this instance and it appears that she is being put through an action plan with a predetermined outcome.

The final paragraph of this letter states that the Complainant is currently on stress related leave; she has lost 10kg in weight, she is fearful, vulnerable and her confidence is shattered. I am somewhat surprised that Management at ward level did not notice her fragile condition and her rapid weight loss and escalate this to Senior Management. The least one would have expected is that she would have been supported and referred to Occupational Health and EAP.

This letter was never responded to. Management claim this was due to the Complainant being on sick leave. The letter was written by the Complainant’s union rep. A reply should have been sent to the union rep.

The Complainant attended a meeting on 19th October 2018 with Ms ON and Ms KF, the purpose of this meeting was to discuss the Complainant’s working relationship with Ms JG. At this meeting the Complainant stated that she had no issues with Ms JG.

At a meeting on 23rd November the Complainant acknowledged (through her union representative) the support provided by management to assist her in achieving the required standards of work. This meeting was arranged to discuss management’s concerns in relation to the Complainant’s practice in the following areas:

•          Medication competency

•          Nursing care planning

•          Communication

•          Documentation

•          Time Management.

On 28th November the Complainant sought a meeting with management to discuss a medication error and the dressing of a wound, two areas where the Complainant’s performance were being questioned.

On 7th December a meeting attended by the Complainant and her union representative, Ms ON and Mr BO’S took place. At this meeting the Complainant was informed that she was being suspended on full pay pending the investigation of serious concerns in relation to her working practices and knowledge.

On December 13th the Complainant asked to meet with the Director of Nursing, Ms SS.  The Complainant attended with her union official.  At this meeting, the Complainant spoke about her complaint in relation to Ms JG.  Both the union official and the Director of Nursing explained that this had been discussed at the meeting in September and was closed out at that time.  The union official stated that no correspondence had been received stating this and the ADON HR, Ms N was to follow up on this with a letter.  A letter issued on 17th December stating that there was no commitment given to carry out an investigation into her relationship with Ms JG.  The purpose of the meeting was to assist the Complainant’s return to work.  The letter also refers to the meeting of 19th October at which the Complainant stated that there were no issues regarding her relationship with Ms JG and that management was not required to intervene at that time.  At the end of the meeting the union official raised the matter of provision of a reference if the Complainant was to resign.  The meeting was suspended at that point and she remained on administrative leave.

On January 24th the Complainant sent an email to the Employee Relations Manager, stating that she did not wish to resign but felt that she had no option. She requested that a good reference be issued to her. On the same day Mr BO’S sent an email accepting her resignation

On February 15th a meeting took place attended by the Complainant, her INMO official and Mr B O’S. This meeting was requested by the Complainant. At this meeting the Complainant submitted a medical certificate from her own Doctor stating that she was suffering from stress and was not fit to make a rational decision in relation to her future. At this meeting she sought to withdraw her resignation. The Hospital agreed to this and the Complainant remained on administrative leave. However, she was informed that following an assessment by the Hospital's Occupational Health Physician that an investigation into her performance and her fitness to practice as a  nurse would be investigated. She was informed that the outcome of this could be a disciplinary sanction up to and including dismissal.

OnApril2ndMr BO’SsentalettertotheComplainant'sINMOofficial.Inthisletterheoutlinesthattherewere serious concerns in relation to the Complainant's performance and competency as a Nurse. The Hospital had put in place supports to address the shortcomings. The allegation that Ms JG everdisclosedconcernsontheComplainant'sperformancetootherstafforaskedotherstafftoreportanyissuesontheWardregardingtheComplainantwasrejected.

OnApril5ththeINMOOfficialsentalettertotheDirectorofNursing,Ms S S seeking a meeting to discuss the Complainant's options in relation tothe disciplinary investigation and her desire to return to work in the Hospital.

On April 17th the Complainant, her INMO official, the Director of Nursing and Mr BO’S met. At this meeting they discussed the Complainant's original grievance against Ms JG and was informed that what she was referring to was normal reporting processes that take place in a Ward.

On April 19th the Complainant again tendered her resignation. In this email the Complainant states that she did not wish to enter the investigation process. Her resignation was accepted by the Hospital on April 23rd.

ShecompletedtheHospitalResignationFormonApril30th.

Thereference,withthewordingasagreedwithherINMOofficial,wasissuedbytheDirectorofNursingonMay2,2019.

Her employment ceased with the Hospital on 19th May 2019.

I have considered the comprehensive submissions from both parties and the evidence provided by the witnesses from the hospital and finally from the Complainant herself.

I have considered the case law submitted by the parties:

By the Complainant:

Philip Smith v. RSA Insurance Limited UD 1673/2013

Bank of Ireland v. Reilly [2015] IEHC 241

Liz Allen v Independent Newspapers 2001

Berber v Dunnes Stores 2009 IESC 10

By the Respondent:

McCormack v Dunnes Stores UD1421/2008

In the instant case the Complainant had a choice to make, there were two options available to her:

1.       Resign and be issued with a reference.

2.       Stay and enter into an investigation process which may lead to a disciplinary sanction up to and including dismissal.

In Mc Cormack v Dunnes Stores the Employment Appeals Tribunal stated:

'The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhaustedall internalproceduresformal or otherwise in an attempt to resolve her grievance with his/her employer. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable."

In the instant case the Complainant did not exhaust the internal procedures, she could have stayed in employment and went through whatever investigation the Respondent proposed to carry out.

 Redmond on Dismissal Law (Chapter 19:24 page 443 - Third Edition) reads as follows:

“…. where an employee clearly resigns in a hasty fashion against the backdrop of an investigation and disciplinary procedures, reasonableness demands that the employer consider carefully whether this resignation should be set aside. However, if the evidence is that the complainant instigated the option of resigning from the company to avoid the possibility of prosecution and adverse publicity (or, presumably for any other personal reason) such resignation will not amount to constructive dismissal. Constructive dismissal cases can involve a clash of personalities which in itself does not justify resignation………”.

I have carefully considered all the evidence adduced at the hearing of the complaint and now find that the complaint is not well founded. The Complainant did not have to resign from her employment. I do note that the Respondent has stated that the Complainant was paid in full during her suspension/ administrative leave. The Complainant rep disputes this fact and claims the Complainant suffered a loss of `€428 per fortnight. This is something that the Respondent should look at and if the Complainant’s contention is correct the Respondent should rectify this matter.

I have carefully considered all the evidence adduced at the hearing of the complaint and now find that the complaint is not well founded. The Complainant did not have to resign from her employment.

Constructive Dismissal.